[Vol.108

A COMMENT ON PRE-TRIAL COMMITMENT OFCRIMINAL DEFENDANTS

CALEB FooTE t

In 1949 four military prisoners killed a fellow prisoner in aCalifornia disciplinary barracks and were convicted of murder by amilitary court martial. Ten years later the Supreme Court sustainedthe defendants' contention under section 92 of the Articles of War thatthe military court had had no jurisdiction over a case of murder com-mitted within the continental United States in time of peace.1 There-after on March 4, 1959, defendants were indicted in the civil federaldistrict court. As to three of the defendants, the court, relying prin-cipally upon United States v. Provoo,2 granted a motion to dismiss onthe ground that the ten-year delay, occasioned not through the fault ofthe defendants but as a result of a calculated tactical gambit by thegovernment, had amounted to denial of the right to a speedy trial.However, the indictment against the fourth defendant, Coons, was notdismissed; he was recommitted to the custody of the Attorney General.Coons had been brought to court from Springfield, Missouri, where hehad been serving his military life sentence in the federal institution forthe criminally insane. This fact together with his conduct in courtcaused the judge to order a psychiatric examination pursuant to the1949 federal statute governing determination of mental competence tostand trial.3 After examination and hearing, Coons was found to be"presently insane and so mentally incompetent as to be unable to under-stand the proceedings against him," and he was returned to Springfielduntil, presumably, he should be sufficiently recovered to "participate"in the dismissal of the indictment against him. United States v. Barnes,175 F. Supp. 60 (S.D. Cal. 1959).

This case is a fascinating illustration of the complexities which aredeveloping as by-products of the criminal law's expanding concern forthe allegedly insane defendant, and demonstrates once more that liberaldiscretionary welfare legislation contains hidden potentiality as a two-

t Professor of Law, University of Pennsylvania. A.B., 1939, Harvard University;M.A., 1941, Columbia University; LL.B., 1953, University of Pennsylvania.

I Lee v. Madigan, 358 U.S. 228 (1959).2 17 F.R.D. 183 (D. Md.), aff'd per curiain, 350 U.S. 857 (1955).

a 18 U.S.C. §§ 4241-48 (1958).

(832)

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edged sword.4 Clearly our concepts of fair procedure require that adefendant not be overreached in a criminal prosecution because hismental illness impairs his ability to defend himself; this is a beneficentpurpose of the federal commitment statute. Likewise it will not bedisputed that if Coons is mentally ill he should be treated, and that ifbecause of his illness he is dangerous (the court made no explicitfinding to this effect) he ought to be restrained in the public interest.It does not follow from this, however, that it is justifiable to submitCoons to a commitment procedure which is a part of the criminalprocess and which will result in confinement with the criminally insane.

Any enlargement of the class of criminal cases treated as mentallyill, whether through operation of a Durham rule or through operationof a commitment statute such as that applied to Coons, creates im-portant new problems because of the limitations of psychiatric ex-pertise and the vague and perhaps unpredictable standards of "danger-ousness" which, in substitution for a determinate term of imprisonment,become the criteria determining the duration of detention. Theseproblems are particularly difficult if such substitute treatment is appliedon the basis merely of a charge of crime, before there has been aconviction. The purpose of this Comment is to explore the deficienciesof the present law relating to pre-trial insanity when the defendanteither cannot be convicted as a matter of law or has reasonable basisfor contesting the criminal charge on the merits. It will also suggestsome serious problems of federal jurisdiction posed by the statute underwhich Coons was committed.

I

Most of the writing relating to mentally ill defendants with whichwe have been deluged in recent years concerns standards for thedetermination of criminal responsibility, but the related question ofcompetency to be tried is of great practical importance. The RoyalCommission on Capital Punishment reported a steady rise in thenumber of murder defendants found insane on arraignment relative tothe number found guilty but insane,' and in recent years this pre-trialdetermination has resulted in more commitments to Broadmoor thanjury findings of insanity after trial.' Comparable statistics for this

4 Compare HART & WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYsTEM326 (1953) : "Haven't you noticed how frequently the protected groups in an adminis-trative program pay for their protection by a sacrifice of procedural and litigatingrights ?"

5 Royal Comrin on Capital Punishment, 1949-53 Report, CMD. No. 8932, at 220(1953).

6 1d. at 300. For the period 1945-49, there were 87 commitments on findings ofinsane on arraignment as opposed to 79 found guilty but insane.

834 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.108:832

country are not available, but the number of such dispositions iscertainly significant. In theory the two proceedings are sharply dis-tinguished, the test for competence to stand trial being both differentfrom and probably less rigorous than the standards used in determiningcriminal responsibility by application of the M'Naghten case. Thecompetency rule did not evolve from philosophical notions of punish-ability, but rather has deep roots in the common law as a by-productof the ban against trials in absentia; the mentally incompetent defendant,though physically present in the courtroom, is in reality afforded noopportunity to defend himself.7 As a matter of defense strategy,however, the motion to find the defendant incompetent to be tried andthe plea of not guilty by reason of insanity have usually been but twoprongs of a general insanity defense. Both will achieve the sameimmediate end of avoiding the imposition of criminal punishment, andboth will result in an indeterminate commitment to the same institutionfor the criminally insane. The tactical disadvantage of a pre-trialcommitment is, of course, that the defendant remains an accused, subjectupon recovery to possible trial and punishment.8 As actually beingput to trial after recovery is probably rare except where the commit-ment is of short duration,9 this may be the lesser risk for the defense inview of the difficulty and uncertainty attendant upon an insanity defense,particularly in a M'Naghten jurisdiction.

Almost all the reported litigation concerning mental competence tostand trial has arisen in this context of defense strategy, where thedefendant after conviction has alleged that it had been error to puthim to trial at all. As long as in practice the initiative in raising theissue rests with the defense, the problem of a defendant who, althoughinsane, nonetheless wishes to go to trial on the merits is unlikely toarise. The 1949 federal incomptency statute under which Coons wascommitted, however, takes this initiative away from the defendant andrequires the United States Attorney (or permits the court on its owninitiative) to move for a hearing to determine competency if there is"treasonable cause to believe" incapacity may exist."0 While there havebeen scattered earlier federal cases in which a defendant has resisted a

7 For a history of the rule see, e.g., Youtsey v. United States, 97 Fed. 937, 940-46(6th Cir. 1899).

8 E.g., Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391 (1952) (trial anddeath sentence for murder committed fourteen years earlier after intervening pre-trialcommitment to mental hospital).

9 See Royal Comm'n, supra note 5, at 222. The same is probably true in theUnited States, although there is an almost total lack of information as to thefinal outcome of cases committed to institutions for the criminally insane.

10 18 U.S.C. § 4244 (1958).

1960] PRE-TRIAL COMMITMENT OF CRIMINAL DEFENDANTS 835

prosecution motion under this statute,"1 and a few other instances inwhich an originally acquiescent defendant grew restless and sought toterminate his commitment and force a trial, 2 Barnes is the firstAmerican case which sharply dramatizes the emergence of this newproblem. If the United States Attorney or the court initiates themotion, commitment will preclude the defendant from asserting adefense which might bar conviction on the pending indictment. Al-'though the objective of the common-law incompetency rule was toprotect defendants from being prejudiced by their insanity, it is obviousthat in this case Coons' ability to comprehend the charge or assist hiscounsel was irrelevant to what would have been the disposition of thecriminal charge against him. In his commitment, therefore, thecriminal charge serves as little more than a fictional jurisdictional ex-cuse for indeterminate confinement, the duration of which will begoverned by psychiatric evaluation of his alleged dangerousness. Sucha retention of federal criminal jurisdiction over Coons thus pushes thefederal government still further toward the jurisdictional field of "civil"commitment historically reserved to the states.

II

Before turning to the policy problems raised by the application ofan indeterminate criminal pre-trial commitment to defendants who can-not be convicted or who allege that they are innocent, a brief examina-tion of the jurisdictional issues raised by the 1949 federal statute is inorder. The statute's passage was urged by the Federal Bureau ofPrisons and the Judicial Conference, which were concerned because(1) considerable numbers of those sentenced were found to be insane atthe time of their reception in prison, raising the inference that theyshould never have been brought to trial at all, 3 and (2) the Bureauwas being forced to release at the expiration of their terms prisonerswhom the Bureau regarded as insane and dangerous, but for whomit had been unable to make arrangements for commitment by stateauthority.' 4 The statute adopted by Congress " substantially followedthat recommended by the Judicial Conference and provided (1) bysection 4244, for determination of mental incompetency after arrest and

'1 See especially United States v. Miller, 131 F. Supp. 88 (D. Vt. 1955), aff'd,233 F.2d 171 '(2d Cir. 1956). See also Howard v. United States, 261 F.2d 729 (5thCir. 1958).

12 E.g., Greenwood v. United States, 350 U.S. 366 (1956).13 Greenwood v. United States, 219 F.2d 376, 381 (8th Cir. 1955), aff'd, 350 U.S.

366 (1956).14 Hearings oin S. 850 Before a Subcommittee of the Senate Committee on the

Judiciary, 80th Cong., 2d Sess. 7 (1948).15 18 U.S.C. §§ 4241-48 (1958).

836 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.108:832

before trial upon the motion of either party or the court; (2) by section4245, for a government-initiated postconviction procedure to determinecompetency of prisoners whose alleged mental incompetency has beenundisclosed at trial, such postconviction proceedings to result in vaca-tion of the convictions of those found to have been incompetent at theiroriginal trial; (3) by section 4246, for federal pre-trial commitment ofthose found incompetent pursuant to either of the foregoing provisions(with important innovations to be.noted below); (4) by section 4247,for continued custody of prisoners whose sentences have expired butwho are found to be insane, dangerous to the interests of the UnitedStates and for whom suitable arrangements for state custody and careare not otherwise available; (5) by section 4248, that a commitmentmade pursuant to section 4247 will continue until the defendant iscured or suitable arrangements for state custody can be completed.

A state can subject any mentally ill person to an involuntary civilcommitment, a power which stems from Chancery's exercise of thedoctrine of parens patriae. When a state prisoner is found to be insaneupon his completion of a criminal sentence, therefore, it is a relativelysimple matter to have his custody continued by a civil commitment.The Constitution, however, nowhere gives the federal governmentgeneral commitment power over the insane, and prior to the 1949statute the absence of any federal legislation or judicial assertion ofsuch power bears out the assumption that parens patriae powers arereserved to the states.'0 The constitutional sanction for continuedfederal custody under sections 4247-48 after completion of a federalsentence could presumably be founded upon one of two theories. Thefirst is the limitation in the statute that custody is conditioned upon afinding that "if released [the prisoner] will probably endanger thesafety of the officers, the property, or other interests of the UnitedStates." The trouble with this magical jurisdictional incantation isthat it proves too much.-7 Presumably any potentially dangerous in-

16"Negative testimony is often as compelling as bits of affirmative evidence."Romero v. International Terminal Operating Co., 358 U.S. 354, 370 (1959). Seethe dissenting opinion of Chief Justice Taney in Fontain v. Ravenel, 58 U.S. (17How.) 369, 393 (1855). For a discussion of lack of federal jurisdiction in the relatedfield of domestic relations, see HART & WECHSLER, op. cit. supra note 4, at 1016-18(1953).

17 For an attempt to support a federal civil commitment power under this theory,see Note, 64 YALE L.J. 1070, 1078-79 (1955). See also Dession, The Mentally IllOffender in Federal Criminal Law and Administration, 53 YALE LJ. 684 (1944),where, in an article written before the adoption of the federal statute, an expansiveview of federal jurisdiction in this field is advanced. Perhaps a more restrictive-and thereby more tenable-reading might be urged of the statutory phrase whichpurports to ground federal jurisdiction upon a danger to federal interests. If thelanguage is limited to the case of persons who, having previously been convicted of afederal crime, are now insane, the isolation of this particular class for congressionaltreatment would seem less arbitrary, the inference of a special threat more rational.

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sane person, and not just one completing a federal sentence, may takeit into his mind to go to Washington and try to assassinate thePresident. Federalism as applied in the insanity field has presumedthat the states are competent to protect the community (includingfederal interests) against the insane, and impatience with the apparentfailure of the states to do this job in the cases of a few released federalprisoners hardly warrants a novel theory of federal power which wouldestablish the constitutional basis for upsetting an historically entrenchedbastion of exclusive state jurisdiction.

A second more limited and more reasonable constitutional basisfor sections 4247-48 is that continued custody after termination ofsentence is a necessary incident to the federal power to prosecute andpunish criminals. If a federal prisoner becomes insane while in prison,and if in fact no state will recognize him as a resident and give himproper care and custody after his release, it may be that the federalpower to prosecute carries with it a responsibility to step into thebreach. While the factual assumption upon which this theory restsseems puzzling in view of the fact that states do not apparently makeresidence or domicile a prerequisite for the institutionalization ofdangerous insane persons,'" applications of the statute in cases wherethere is actual unavailability of state facilities would seem to be areasonable exercise of constitutional power to prosecute crimes. Asyet no cases have been reported construing this part of the statuteapplying to commitments upon termination of a federal sentence.

More troublesome are the jurisdictional and policy problems aris-ing in pre-trial commitment cases. Three situations must be dis-

But inasmuch as commitment under these sections is also available in the case ofcourt or prosecution pre-trial motion, such an interpretation of congressional intentis unsupportable.

18 See, e.g., ILL. ANN. STAT. ch. 911, §§ 9-10, 9-11 (Smith-Hurd 1956) (pro-

vision for detention of nonresidents) ; N.J. STAT. ANN. §§ 30:4-52 (1940) (state tobear costs of institutionalization of nonresidents), 30:4-57 (Supp. 1959) (provisionwhere no settlement found in any county). Of course the heritage of the poor lawsremains, and states are undoubtedly anxious to avoid financial responsibilities for non-residents, especially since as a factual matter it is probably much harder to get perma-nent care for a nonresident. That reluctance might be overcome in part by a provisionfor federal payment of costs along lines currently authorized in 39 Stat. 309 (1916),24 U.S.C. § 213 (1958), applying to state commitments of federal prisoners duringtheir term of sentence. This would allow the states to retain control over the sub-stantive questions of duration of commitment and the grounds therefor. Of course,this may be precisely what the proponents of the federal statute were seeking toavoid; one suspects that in many cases state authorities refused to find commitableprisoners who in the opinion of the Federal Bureau of Prisons were not fit for release.With an expanding concept of insanity as applied to criminal types (e.g., release wasdenied to defendant committed following verdict of not guilty by reason of insanitywhen doctors agreed that he was a "sociopathic personality with dyssocial outlook'in Overholser v. Leach, 257 F.2d 267, 269 (D.C. Cir. 1958), cert. denied, 359 U.S.1013 (1959)), the application of this federal statute could be developed into a formof indeterminate sentence.

838 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

tinguished. The first is where there is prospect that within a reasonabletime there will be a recovery sufficient to enable the case to go to trial.Here both reason and history would support federal jurisdiction tocommit as incident to the power to prosecute crimes. The secondsituation is where the prospects of recovery are remote, and here thejurisdictional theory based on the power to prosecute becomes moretenuous. As the likelihood of any trial diminishes, what began as acriminal pre-trial detention would seem more and more to resemble anordinary parens patriae civil commitment. For this reason, prior to1956, several lower federal courts held that application of the statute todefendants who were "permanently" insane or unlikely to recoverwas an unconstitutional exercise of federal power. 9 In that year, how-ever, the Supreme Court in Greenwood v. United States 20 sustained apre-trial commitment under the statute despite the "fact that at presentthere may be little likelihood of recovery. . . ." Mr. Justice Frank-furter, writing for the Court, was sceptical about the psychiatric evi-dence: "The only certain thing that can be said about the present stateof knowledge and therapy regarding mental disease is that sciencehas not reached finality of judgment, even about a situation as un-promising as petitioner's," with the result that "we cannot say thatfederal authority to prosecute has now been irretrievably frustrated." 21

That this judicial scepticism was not without foundation appears fromthe fact that Greenwood subsequently recovered and was tried andconvicted.22

The Court in Greenwood did not mention the speedy trial problem.Past litigation concerning denial of a speedy trial to one who couldnot be tried because of incompetence has arisen where the defendantinitiated the incompetency proceedings and, it was held, thereby waivedhis right to a speedy trial.3 Where the defendant is objecting to thedelay, however, a point will certainly be reached at which erosion ofhis case by the passage of time will require application of the speedytrial rule, which will "irretrievably frustrate" the prosecution. The

19 Wells v. Attorney General, 201 F.2d 556 (10th Cir. 1953); Dixon v. Steele,104 F. Supp. 904 (W.D. Mo. 1951). Cf. Higgins v. United States, 205 F.2d 650(9th Cir. 1953) (Commitment order upheld, but "if the court should determine thatdefendant is not and will not within a reasonable time be able to stand trial by reasonof mental incapacity, he should be released from federal restraint, preferably to appro-priate state authorities.' Id. at 653).

20 350 U.S. 366 (1956).21 Id. at 375.22 See Smith, A Commentary on Some Psychiatric Aspects of Title 18, U.S.

Code, Section 4246, 19 FED. B.J. 208, 209 (1959).23 E.g., Germany v. Hudspeth, 209 F.2d 15 (10th Cir.), cert. denied, 347 U.S.

946 (1954). For a discussion of the limited availability of this right see 108 U. PA.L. REv. 414 (1960).

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difficulty of prediction in this area is suggested by a recent statement ofthe medical director of the Federal Bureau of Prisons:

"Actually, the crucial questions being put to the psychiatric ex-perts in this instance are simply whether and when the defendantwill recover sufficiently to go to trial. Although the questions areclear and straightforward enough, it happens all too frequentlythat the medical intelligence available does not permit a clear-cutanswer. In short, the ability to predict accurately the futurecourse and outcome of the great bulk of mental disease awaits thefurther progress of science." 24

Under these circumstances the "wait-and-see" approach adopted inGreenwood is probably the best way out of a bad situation. In thatcase the delay factor had apparently not yet become critical (Greenwoodhad been indicted in 1952) and there was no suggestion that he hadany defense on the merits.25 Nonetheless this reasoning suggests thatthere should be a limit to the Greenwood theory, not only in point ofprejudicial passage of time, but in point of improbability of prosecution.Once the court, taking a properly sceptical view concerning the psychi-atric prognosis of nonrecovery, is nevertheless convinced that a prose-cution can never eventuate, the quasi-criminal commitment based onthe federal power to prosecute should be terminated and the defendantreleased to the state.

The statute in terms, however, purports to go further than thesituation where future trial is merely remote; it permits the continua-tion of a criminal pre-trial commitment in a third category of caseswhere there can never be a conviction. Section 4246 provides for theconventional pre-trial commitment until there has been sufficientrecovery "or until the pending charges against [the defendant] aredisposed of according to law," e.g., a nol pros or other dismissal of theindictment. But an added sentence in the section also permits commit-ment under the provisions of sections 4247-48, pertaining to prisonerswhose sentences have expired. Under this alternative section 4247commitment, the possibility of eventual recovery, the impossibility ofconviction or even the dismissal of the indictment would appear to beirrelevant to termination of federal custody. Section 4248 explicitlyprovides that a section 4247 commitment "shall run until the sanity or

24 Smith, supra note 22, at 210.25 Greenwood signed a waiver of trial in Missouri under FED. R. CRIM. Pao. 20

which provides that "a defendant arrested in a district other than that in which theindictment or information is pending" may be transferred for plea and sentence ifhe states in writing, inter alia, "that he wishes to plead guilty or nolo contendere."While an incompetent's offer to plead guilty should be regarded with suspicion, thisoffer emphasizes that the Greenwood court had no claim of defense on the meritsbefore it.

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mental competency of the person shall be restored or until the mentalcondition of the person is so improved that if he be released he willnot endanger the . . . interests of the United States, or until suitablearrangements have been made [for state custody], whichever eventshall first occur." What this statute seems to say is that upon the merepretext of a federal criminal charge a man can be subjected to anindeterminate detention terminable only upon the conditions enu-merated above, even if he is never indicted (for the prosecutor can movefor commitment at any time after arrest), or the indictment is dis-missed, or the defendant can show that as a matter of law he can neverbe convicted. This bold jurisdictional assertion, which goes far beyondthe necessities of pre-trial commitment and about which the legislativehistory is strangely silent, bothered Mr. Justice Frankfurter in theGreenwood case:

"Although the language of the statute and the report of the Com-mittee of the Judicial Conference demonstrate that the statutedeals generally with the situations both of temporary and morethan temporary insanity, one could infer from the reports on thebill by the Committee, by the Judicial Conference itself, and bythe committees of both Houses of Congress that the specificcommitment under § 4248 was designed only for prisoners whosesentences are about to expire. But this is a case for applying thecanon of construction of the wag who said, when the legislativehistory is doubtful, go to the statute. The second sentence of§ 4246 clearly makes commitment under § 4248 applicable topersons found mentally incompetent under § 4244 who meet theconditions specified in § 4247." 26

In Greenwood itself, where there was a still-pending charge, the Courtdid not have to reach this issue and it was careful to note that "wedecide no more than the situation before us presents.. ," 2 Cer-tainly the rationale for jurisdiction in the Greenwood case-that com-mitment is necessary and proper to the power to prosecute offenses-cannot be extended to a pre-trial section 4247 commitment whose"pre-trial" nature becomes pure fiction where the criminal charge hasbeen dropped or demonstrably cannot be maintained. Coons' prosecu-tion has been "irretrievably frustrated" by the holding applied to hisco-defendants that as a matter of law they were denied their right toa speedy trial. The only basis for jurisdiction here is parens patriae,albeit qualified in some vague and not very significant manner by therequirement of potential danger to federal personnel, property or otherinterests. I have already suggested the constitutional thinness of such

26 Greenwood v. United States, 350 U.S. 366, 374 (1956).27 Id. at 376.

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a jurisdiction, and shall now seek to demonstrate that such an extensionof quasi-criminal commitment is as unwise in principle as it is un-grounded by federal jurisdictional power.

III

The constitutional question aside, the case of Coons points up adefect in pre-trial commitment procedure which is likely to be increas-ingly troublesome in the future. Just as federal jurisdiction dependsupon a relationship between the commitment and the power to carryout a prosecution in the future, so in any case, state or federal, thepropriety of a criminal pre-trial commitment to a special institution forthe criminally insane should turn on the existence of a bona fide criminalaccusation. At present neither the federal statute nor the common lawmakes any allowance for the defendant who, although perhaps concededto be incompetent, has valid grounds for attacking the criminal chargeon the merits.

This question might arise in three different types of situations.The first is the instance, as with Coons, where the defendant can showthat the prosecution is barred as a matter of law; another example wouldbe an indictment which on its face discloses that the statute of limitationshas run. Second are cases where the defendant alleges that he canshow an intrinsic defect in the prosecution's factual case which willprevent conviction, for example, that essential evidence was .obtainedby an unlawful search and seizure or that the prosecution's evidenceshows entrapment as a matter of law. Third, counsel for an incom-petent defendant may wish to assert an affirmative defense which canbe established without participation of the defendant. In a robberyprosecution based on identification evidence, for example, counsel maybe able to establish from employment records and the testimony ofthird parties that the defendant was at work in another city at the timeof the crime. In all of these situations present law appears to say tothe defendant: "Wait. You can't raise this until and if you haverecovered. In the meantime we'll detain you with the criminally in-sane, where you will have to live under the cloud of an accusation fromwhich we will not allow you to exculpate yourself."

It may be answered that although this is regrettable the situationwill arise so seldom as not to be worth the effort to prevent it, andthat in any case the defendant will not be prejudiced, since if we stipu-late that he is insane, he is going to be institutionalized anyway. Asto the first objection, our law does not fail to protect a defendant froma situation deemed inimical to fair procedure merely because of the

842 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

infrequency of its occurrence.28 Besides, we have no way of estimating

how rare such cases may be, for it is only when the initiative to raisethe competency issue shifts to the prosecution that cases will come tolight in which counsel believes that it is in defendant's best interest to

go to trial on the merits, notwithstanding his incompetency. If thereis general acceptance and application of the rule implied in the federal

statute and specifically enunciated by the Court of Appeals for theDistrict of Columbia, that a defendant "cannot be master of his ownpleadings" as regards incompetency,29 then we can expect cases raising

this issue to appear with increasing frequency.The degree to which incompetent defendants who allege that they

will not be convicted are prejudiced by delay of the opportunity forexculpation depends both upon the effect of the delay on available

evidence and upon the type of institutionalization to which the insaneaccused are subject compared with that provided in ordinary civilcommitments. There is no need here to belabor the obvious fact thatproduction of an affirmative defense may be seriously jeopardized by

delay: memories fade, witnesses die or move away, documentary recordsmay become unavailable."0 That the prosecution may be similarlyprejudiced or that a defense based on speedy trial will be available are

at best speculative possibilities, neither of which assures a defendantagainst prejudice.3 1 Nor is there any way at present whereby critical

defense evidence can be preserved by deposition. Meanwhile, duringthe period of delay, in most jurisdictions the accused will be detained

not with the general run of mental patients but with others accused of

crime, with criminal defendants found not guilty by reason of insanity

and with insane prisoners transferred from penal institutions. That

28 Two recent federal habeas corpus cases where the situation which prejudicedthe defendant and voided the conviction is so improbable that it may never arise againillustrate the application of this principle. See Grandsinger v. Bovey, 153 F. Supp.201 (D. Neb. 1957), aff'd, 253 F.2d 917 (8th Cir.), cert. denied, 357 U.S. 929 (1958)(during defendant's trial, it was revealed to the jury that defense counsel had tamperedwith the prosecution's evidence, a disclosure which defendant contended deprived himof effective counsel) ; United States, ex rel. De Vita v. McCorkle, 248 F.2d 1 (3dCir.), cert. denied, 355 U.S. 873 (1957) (one of the jurors failed to reveal that hehad been the victim of a robbery similar to the one underlying the murder prosecutionof defendant). '

29 Seidner v. United States, 260 F.2d 732, 734 (D.C. Cir. 1958). In this case anaction under 18 U.S.C. § 2255 (1958) involved an examination under D.C. CODE ANIN.§§24-301 (1951), but the issue is the same as in cases arising under 18 U.S.C. §4244(1958).

3 0 See, e.g., Taylor v. United States, 238 F.2d 259, 262 (D.C. Cir. 1956) ; UnitedStates v. Chase, 135 F. Supp. 230, 233 (N.D. Ill. 1955); United States v. Provoo,17 F.R.D. 183, 203 (D. Md.), aff'd per curian, 350 U.S. 857 (1955) ; Commonwealthv. Hanley, 337 Mass. 384, 386-87, 149 N.E.2d 608, 610, cert. denied, 358 U.S. 850(1958) ; People v. Prosser, 309 N.Y. 353, 356, 130 N.E.2d 891, 893 (1955).

31 See 108 U. PA. L. REv. 414 (1960), for a discussion of the infirmities of thespeedy trial defense.

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such a form of institutionalization imports a criminal stigma in boththe public and administrative mind is beyond dispute. We have almostno data regarding conditions in institutions for the criminally insane,

but it is probable that compared with civil patients the criminally insaneare (1) afforded less treatment; (2) detained in stricter custody (adistinction that will become more pronounced with the development ofcopen" hospitals for the mentally ill); and (3) less likely to gain

release after making comparable progress toward recovery. In Millerv. Overholser,3" the Court of Appeals for the District of Columbiaordered a civilly committed sexual psychopath removed from a hospitalward for the criminally insane because the ward was a place of punish-ment rather than of treatment:

"Petitioner testified without contradiction that he had been as-saulted by mentally deranged persons in shackles. He describednoisome, unnatural and violent acts by inmates in this Hall ...[T]he facts which petitioner asserts depict a place of confinementfor the hopeless and the violent, not a place of remedial restric-tion." "

While this is doubtless extreme, there is little reason to question thata criminal pre-trial commitment will usually result in the poorest andmost restrictive form of hospitalization.

In England the problem of the accused who resists a Crown motion

to find him unfit to plead, wishing to go to trial on the merits, has beenconsidered in two recent cases which have reached opposite results. InRegina v. Roberts,4 Devlin, J., after noting that the question hadprobably never arisen before, postponed swearing a jury to try thepreliminary issue of fitness to plead until the general issue should belaid before the jury. 5 Three years later in R. v. Beynon,0 Byrne, J.,declined to follow the Roberts opinion and insisted upon a prior deter-

32 206 F.2d 415 (D.C. Cir. 1953).3 3 Id. at 418-19.34 [1954] 2 Q.B. 329.35 The nature of the defense on the merits which Roberts wished to advance was

not stated; counsel "has not disclosed, as he is not bound to do and as, indeed, heshould not do, the nature of his defence. It may well be that the defence is that theprosecution witnesses do not make out a prima facie case; or it may be that the de-fence have at their disposal other witnesses, not yet called, who, if believed, woulddestroy the case which the prosecution would otherwise have made out. Whateverit be, it is a perfectly conceivable situation, although it appears never to have arisenin practice before, but counsel for the defence, although he cannot be instructed bythe accused, may say: 'I do not think that the prosecution can bring any case againstthis accused man at all. If they can, then of course I am in no position to defend itwith his aid because he cannot instruct me and cannot tell his story. [The defendantin this case was deaf and dumb from birth.] But as the prosecution can make outno case, I am not prepared to let the matter go merely on the issue whether he isfit or unfit to plead." Id. at 332.

36 [1957] 2 All E.R. 513 (Cardiff Ass.). These cases are discussed in Prevezer,Fitness to Plead and the Criminal Lunatics Act, 1800, 1958 CRIm. L. REv. 144.

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mination of the fitness issue. As a purely conceptual matter, the latteris certainly logical: not to try a preliminary issue first is "a novelproposition." Byrne, J., cites a long line of authority to the effect thatan insane man should not be put to trial. But none of this authorityanticipated or dealt with the narrow issue involved, and its applicationmisses the point that Devlin, J., drives home:

"to insist on the issue of fitness to plead being tried [first] mightresult in the grave injustice of detaining as a criminal lunatic aman who was quite innocent; indeed, it might result in the publicmischief that a person so detained would be assumed, in the eyesof the police and of the authorities, to have been the person re-sponsible for the crime-whether he was or was not-andinvestigations which might have led to the apprehension of thetrue criminal would not take place." 37

The difficulty with which these cases dealt was anticipated by the RoyalCommission on Capital Punishment, to which witnesses had suggestedthe existence of "a risk, not negligible, that persons who were notguilty would be deprived of the opportunity of establishing their in-nocence." 81 The Commission agreed, and stated that "we think thatcases of indefinite detention as a Broadmoor patient without trial oughtto be kept to a minimum, and we do not favour freer recourse to thepractice of raising the issue of insanity on arraignment." 39

IV

It is thus evident that the federal jurisdictional issue in thecommitment of Coons leads into a more fundamental policy problem,and resolution of the policy issue would moot the constitutional ques-tion. It is now apparent that the competency rule can be literallyapplied under either the common law or the federal statute to workgreat injustice. It must be remembered that the precept of forbiddingtrial of defendants while they are insane evolved to insure fairness ofprocedure for the defendant. Pre-trial commitment achieves this endby postponing his trial until he can have an opportunity to contest thecharge. The rule arose in a day when defendants were not affordedcounsel, and, if adequate representation is assumed, there will be manyinstances today in which delay in resolving the issue of criminal guilton its merits will not be so imperatively required as it was in the timeof Hale. Pre-trial commitment has never been and should not bepermitted to become a devious means of assuring criminal custody overpersons on the alternative ground that, although they can demonstrate

37 Regina v. Roberts, [1954] 2 Q.B. 329, 333.S8 Royal Comm'n, supra note 5, at 222.39 Id. at 224.

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that they are not guilty, psychiatric opinion finds them dangerous tothe interests of the United States. Experience with commitmentsunder sexual psychopath laws should alone give us pause before weembark upon another venture involving similar imprecise and un-certain psychiatric standards of prediction. It follows, therefore, thatDevlin, J., is right in insisting that the defendant who alleges he is notguilty should be given an opportunity to establish that fact before he issubjected to indeterminate detention as a criminal lunatic. State civilcommitment procedures are available to deal with the dangerous butnoncriminal insane.

While the evolution of statutory revision would present somedifficulty, the problems involved are largely conceptual. A proposalalong the following lines would seem to meet the needs of the incom-petent but allegedly innocent defendant without creating undue ad-ministrative or practical problems:

(1) In the event that the prosecutor or court moves for pre-trialmental examination to determine competency, if the defendant is un-represented counsel should be appointed to represent him on the motion.Only in this way can there be assured full development of an issuewhich may have an adverse effect on the defendant. If the defendant(perhaps because of his illness) refuses counsel,40 an amicus curiaeshould be appointed to make an independent presentation of the de-fendant's interests.41

(2) After the court has proceeded to have the defendant mentallyexamined and has heard evidence on the issue of competency to standtrial, if it finds that the defendant is competent it should so rule and allsubsequent proceedings will follow their normal course. If the court isof the opinion that the defendant is incompetent, a ruling to this effectshould be deferred if (a) counsel moves to dismiss the indictment, orfor exclusion of illegally obtained evidence, or raises any other matterwhich can be determined in a pre-trial hearing, or (b) counsel allegesthat there is a good faith defense on the merits and chooses to go totrial on the merits notwithstanding defendant's incompetency. In thesesituations the court shall determine the pre-trial question or proceed toa trial on the merits. If as a result the indictment is dismissed or ifthere is a finding of not guilty on the merits, that will be the end ofthe matter, although of course the court or United States Attorneycan refer the defendant's case to the appropriate local mental health

4 0 E.g., United States v. Miller, 131 F. Supp. 88 (D. Vt. 1955), aff'd, 233 F.2d171 (2d Cir. 1956).

41 This suggestion was made in Seidner v. United States, 260 F.2d 732 (D.C.Cir. 1958), where it was anticipated that defendant would refuse counsel.

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authorities for possible state civil commitment. If there is a verdict ofguilty, the court should then rule that the defendant is incompetent, setthe verdict aside and commit the defendant under sections 4244-46 untilhe is sufficiently recovered to be retried or until other appropriate dis-position can be made of the case.

(3) The procedures outlined in (2) above should also be madeavailable at defendant's election. Under present law counsel represent-ing a defendant who is both probably incompetent and probably notguilty on the merits is required to make an election prejudicial to hisclient. If he moves for a pre-trial finding of incompetency, he waivesany possibility of seeking a present determination on the merits,whereas if he goes to trial on the merits he waives the incompetencyissue. Section 4245 of the federal statute mitigates the effect of awaiver of incompetency to the extent that after conviction the directorof the Bureau of Prisons chooses to have the issue of competencyreopened in a postconviction hearing, but this relief is dependent uponthe director's exercise of discretion. Defense counsel should not berequired to make such an election. As Devlin, J., pointed out in theRoberts case:

"He cannot be forced to say to himself: 'Shall I play for safety andobtain a verdict whereby this man is detained as a criminal lunatic,or shall I, in effect, gamble on my chance of my being able to gethim off altogether, with the knowledge that if my gamble fails hewill be convicted of murder, and there is only one sentence whichthe court can pass.' . . . There must, in my view, be a pro-cedure which would enable counsel for the defence to have theadvantage of taking both points, and if there were no such proce-dure I think that it would be necessary to invent it. ,, 42

If the number of cases in which an incompetent defendant canoffer a bona fide defense on the merits is as small as most people assume,the added burden which this proposal would impose on the courtswould be negligible.43 If the number of such cases turns out to besignificant, this would document that a concern for fair procedurejustifies the extra time and effort required by court and prosecutor. Aresult such as that achieved in the case of Coons is indefensible unlesswe are prepared to incarcerate persons as criminally insane, not as anincident to a valid pending charge of crime but simply in accordancewith psychiatric estimates of future dangerousness.

42 Regina v. Roberts, [1954] 2 Q.B. 329, 332-33.43 It seems improbable that defense counsel would clog the court machinery with

frivolous allegations, but, if experience showed that this was happening, a provisioncould be inserted whereby a defense counsel wishing to go to trial on the meritswould be required to satisfy the judge that his action was not frivolous.